HKSAR v. Lau Wai Man

DCCC 621/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 621 OF 2015

____________

____________

REASONS FOR SENTENCE

1.The defendant faces 4 charges of "Misconduct in public office" (Charges 1, 2, 3 and 5), 1 charge of "Perjury" (Charge 4) and 1 charge of "Doing acts tending and intended to pervert the course of public justice" (Charge 6). He pleaded guilty to Charges 1 to 4 and 6.

2.Upon application by the prosecution, I ordered Charge 5 be left in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Background

3.Good Fortune Finance Company ("Good Fortune"), Fu Tat Finance Company ("Fu Tat Finance"), Diamond Dragon Finance Company ("Diamond Dragon") and Fu Tat Credit Limited ("Fu Tat Credit") were all licensed money lenders in Hong Kong.

4.LAW Shu-keung was the proprietor of Good Fortune; whereas LAW Chun-wai, Fu Tat Finance; and HUI Mei-ching, Diamond Dragon.  HUI was also the sole director cum shareholder of Fu Tat Credit.

5.LO Shi-ki, LAW Shu-keung and LAW Chun-wai are brothers.  LO is also the husband of HUI.  LO was one of the authorized signatories of the bank accounts of Good Fortune, Diamond Dragon and Fu Tat Credit.  LO controlled the operations of all the business entities named above including Fu Tat Finance.  All 4 business entities, either solely or collectively, are referred to as "LO's Companies".

6.From 13 September 2009 to 30 March 2011, the defendant was a detective constable posted at District Investigation Team 4 of Kowloon City District ("DIT4 KCDIST").  His office was located at Hung Hom Police Station.  His duties included conducting criminal investigation.

7.In early 2009, the defendant acted as a guarantor for a loan granted to his father by Diamond Dragon to build a small house in the New Territories.  Under the terms of that loan, Diamond Dragon would pay the construction fees directly to the contractor, Joy Group Development Limited ("Joy Group"), by instalments.

8.Mr. LAU Wai-kwong, a director cum shareholder of Joy Group, confirmed that through the arrangement of LO, the defendant's father hired Joy Group to build a small house.  Joy Group has received a total sum of $1,215,000 from Diamond Dragon by 8 instalments.  In addition to the 8 instalments, the defendant's brother has paid $135,000 to Joy Group. 

9.On 28 August 2013, the defendant reported to the ICAC that he had offered assistance to LO in connection with LO's debt collection activities.  The defendant reported the matter to the ICAC because LO had filed a civil lawsuit against him for repayment of a loan plus interest in the sum of about $20 million.  When interviewed under caution, the defendant admitted that he had helped LO using his police powers to obtain the personal information of debtors of LO or LO's Companies (i.e. Charges 1 to 4).  The defendant has also, in his capacity as a police officer, unduly influenced the family of a debtor of LO to repay a loan (i.e. Charge 6).

Charge 1

10.The 2^nd instalment of the construction fees for the small house of the defendant's father was made by Diamond Dragon to Joy Group on 17 March 2009.  Shortly afterwards, LO requested the defendant to use his police power to conduct enquiries with utility companies and the Water Supplies Department to find out the particulars of a fisherman couple, who had defaulted repayments of their loan obtained from LO's Companies.

11.Acting on LO's request, the defendant caused a letter from the Police to be sent to Towngas.  Bearing the reference number of a case investigated by DIT4 KCDIST, the letter requested Towngas to provide the registration particulars of the fisherman couple for investigation purposes.  But in fact, the fisherman couple was not involved in the investigation.  Believing that the request was related to police investigation, Towngas supplied the relevant information to DIT4 KCDIST.  The defendant, in turn, provided the same to LO.  LO used the information to locate the fisherman couple and recovered the bad debt from them.

Charge 2

12.Subsequent to Charge 1, LO gave the defendant a loan agreement of LIU Ho-ching.  LIU had obtained a loan in the sum of $500,000 from LO's Companies but had defaulted in repayment.

13.The defendant caused a letter from the Police to be sent to CLP Holdings Limited ("CLP").  Bearing the reference number of a case investigated by DIT4 KCDIST, the letter requested CLP to provide the registration particulars of LIU for investigation purposes. But in fact, LIU was not involved in the investigation.  Believing that the request was related to police investigation, CLP supplied the relevant information to DIT4 KCDIST.  The defendant, in turn, provided the same to LO.

14.The defendant signed the letter to CLP for his supervisor.  The defendant's immediate supervisor at the material time confirmed that he did not authorize the defendant to sign any document for or on his behalf to obtain LIU's registration particulars from CLP.

Charge 3

15.Subsequent to Charge 2, LO gave the defendant the date of birth and the HKID card number of CHAN Ho-long, who defaulted in repayment after obtaining a loan from LO's Companies.

16.The defendant prepared and caused a memorandum to be sent to the Immigration Department.  Bearing the reference number of a case investigated by DIT4 KCDIST, the memorandum requested CHAN's Registration of Person record for investigation purposes.  But in fact, CHAN was not involved in the investigation.  The defendant misled his superior to sign the memorandum by falsely representing to him that the request was related to the investigation.

17.Believing that the request was related to police investigation, the Immigration Department supplied the relevant information to DIT4 KCDIST.  The defendant, in turn, provided the same to LO.

Charge 4

18.Subsequent to Charge 3, LO gave the defendant the number of a bank account of KONG Hon-sham held with Hang Seng Bank.  LO told the defendant that KONG owed him horse betting debt and asked the defendant to apply for a search warrant for KONG's bank account in order to obtain KONG's HKID card number.

19.On 19 October 2009, the defendant applied before a magistrate for a search warrant in respect of KONG's bank account. Under oath, the defendant laid false information that KONG's bank account was related to police investigation of a fraud offence.  But in fact, neither KONG nor his bank account was involved in the investigation.

20.The defendant executed the search warrant at Hang Seng Bank.  He obtained KONG's personal particulars (including his address and HKID card number) to facilitate LO's collection of debt from KONG.

Charge 6

21.In October 2008, LEUNG Siu-kong obtained a loan from Diamond Dragon by mortgaging his share of a flat situated at Banyan Garden ("the Flat").  LEUNG owned the Flat in joint names with his mother (Madam CHEUNG).  LEUNG failed to make repayment of his loan and was declared bankrupt.

22.LO arranged his assistant, LAM Chi-yuen, to enter into a sale and purchase agreement ("the S&P Agreement") as purchaser to acquire Madam CHEUNG's share of the Flat.  But in fact, Madam CHEUNG had no intention to sell the Flat and did not sign the S&P Agreement.  LEUNG had allegedly forged his mother's signature as vendor in the S&P Agreement.

23.On 1 April 2010, the defendant was on duty at Hung Hom Police Station.  LO arranged LAM to make a complaint to the defendant against LEUNG regarding the S&P Agreement.  The defendant was assigned to be the investigating officer of the case.

24.LEUNG was arrested by the Police on 10 May 2010.  The defendant escorted LEUNG to his residence for a house search, which was conducted in the presence of Madam CHEUNG.

25.Since the arrest of LEUNG, the defendant had, upon LO's instructions, incited, induced and instructed Madam CHEUNG not to testify against LEUNG for forging her signature on the S&P Agreement.  He told Madam CHEUNG if she would sell her share of the Flat at about $1 million to the finance company from which LEUNG had borrowed money, LEUNG would not be prosecuted.

26.On 20 July 2010, Madam CHEUNG sold her share of the Flat to Profit First Development Limited ("Profit First") at $1.2 million, which was below the market price.  At that time, LO and HUI were the directors cum shareholders of Profit First.

Mitigation & Sentence

27.The defendant is 48 and has a clear record. Defence counsel Mr. CHOY informed me that the defendant is divorced with 3 daughters (aged 8 to 14).  The defendant joined the Police Force in 1990 and resigned as a Senior Police Constable in 2012.  The defendant has received numerous commendations from his superiors for his police work.  In 2011, the defendant was elected as the village head（村長）for Sha Tin Tau Village and Lei Uk Tsuen.

28.In mitigation, Mr. CHOY submitted that the defendant's trouble began in 2009 when his father took out of loan to build a small house[1]. Under the loan agreement, the lender would pay the construction fees directly to the contractor.  Unfortunately, the lender made life difficult for the defendant by not releasing payments to the contractor.  Furthermore, the defendant went to the ICAC on his own volition to report the matter, knowing full well that he was making serious allegations against himself.  Regarding the civil lawsuit brought against the defendant by the lender, Mr. CHOY explained that the defendant's father had only borrowed a few million dollars, but the outstanding debt turned out to be $20 million.  Mr. CHOY informed me that the civil lawsuit is still ongoing, and one of the issues was the legality of the interest rate.

29.Mr. CHOY has also placed the defendant's medical report (dated 23 September 2015) before me.  The defendant is a Hepatitis B carrier.  His latest ultrasound scan (performed in 2014) showed fatty liver.  He also suffers from hypokalemic paralysis.  Finally, Mr. CHOY submitted that the defendant is willing to assist the prosecution, but no further action is required at present.  Prosecuting counsel Mr. YUEN informed me that LAW, LO and HUI were all arrested, but they remained silent under caution.

30.The defendant used his police powers to assist an individual with that person's purportedly legitimate business affairs.  The defendant might have had his "reasons" for doing so.  What he did was plainly wrong and has brought the Police Force into disrepute.  The court takes a serious view of police officers who abused their positions. Public confidence in law enforcement officers must be maintained.

31.I am aware of the defendant's service record and his contribution to the Police Force.  Regrettably, he has destroyed them all.  I am also aware of all the possible consequences (financial or otherwise) which the defendant and his family may need to face.  It is indeed tragic and sad, but the defendant can blame no one but himself

32.Beeson J has commented in HKSAR v CHOW Koon Shing[2007] 3 HKLRD 10 "An offence of misconduct in public office demands a different perspective and a sentencing range which ensures that perpetrators of such offences are punished in a manner that the public understands and expects. Such sentences should also serve as a warning to others who are tempted to misconduct themselves in a similar fashion." [2]  For Charges 1 to 3, I adopt a starting point of 12 months' imprisonment for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 8 months.  Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 8 months' imprisonment for each charge.

33.Regarding Charge 4, although the purpose of committing this offence was the same as Charges 1 to 3, in order to obtain the search warrant, the defendant lied to a judicial officer under oath. His criminal act would seriously undermine the solemnity of search warrants as well as the respect for such authoritative documents by the general public. I adopt a starting point of 15 months' imprisonment for this charge. With the guilty plea, the sentence is reduced to 10 months. I sentence the defendant to 10 months' imprisonment for this charge.

34.Charge 6 is the most serious offence.  In HKSAR v CHONG Choong Leong HCMA 258/2013, P. Li J applied R v Tunney (Reynolds) [2007] 1 Cr. App. R. (S) 91, which identified 3 sentencing factors for "perverting justice": (i) seriousness of substantive offence to which perverting relates; (ii) degree of persistence of offender's conduct; and (iii) effect of offender's conduct.[3]

35.The defendant persuaded Madam CHEUNG to sell her share of the Flat to a company controlled by LO at a price below market value.  The effect of his conduct is appalling and most unfair to Madam CHEUNG.  I adopt a starting point of 2 years' imprisonment for this charge.  With the guilty plea, the sentence is reduced to 16 months.  I sentence the defendant to 16 months' imprisonment for this charge.

36.Having considered the totality principle, I order the sentences to run in the following manner :-

(i) 1 month in Charge 2 consecutive to Charge 1;

(ii) 1 month in Charge 3 consecutive to Charges 1 and 2;

(ii) 4 months in Charge 4 consecutive to Charges 1 to 3; and

(iii) 10 months in Charge 6 consecutive to Charges 1 to 4.

Thus, the total prison term shall be 24 months.